Citation Nr: 1513197
Decision Date: 03/27/15 Archive Date: 04/03/15
DOCKET NO. 13-06 210A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a back disability.
REPRESENTATION
Veteran represented by: Alabama Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The Veteran served on active duty from August 1970 to August 1973 and from February 1974 to February 1980. He also had Reserve service.
This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2015. Additional evidence was submitted at the hearing. The Veteran waived initial review of the evidence by the agency of original jurisdiction (AOJ).
An August 2014 rating decision reflects that the AOJ construed the Veteran's March 2014 correspondence as a notice of disagreement (NOD) with the March 2014 rating decision in which service connection for a back disability was denied. The filing of a NOD confers jurisdiction on the Board, and the next step is for the AOJ to issue a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Thus, the issue is reflected on the title page.
The issue of service connection for a back disability being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.
FINDINGS OF FACT
1. Hearing loss is related to active service.
2. Tinnitus is related to active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2014).
2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Veteran seeks service connection for hearing loss and tinnitus. His DD Form 214 reflects that his military occupational specialty (MOS) was supply clerk. His awards and decorations include a Sharpshooter Badge (Rifle) and an Armed Forces Expeditionary Medal (Korea).
At his Board hearing, the Veteran testified that, although his MOS was supply clerk, he was assigned to an infantry unit and was frequently out in the field providing supplies and food to fellow soldiers, and regularly in close proximity to weapons firing. He added that in addition to the noise exposure from his own unit firing weapons and detonating explosive devices, there was also an artillery unit in the field shooting 105 and 155 mm Howitzers. He noted having ringing in his ears after firing his own weapon at the firing range.
A June 2011 private record reflects an assessment of noise-induced hearing loss and sensorineural hearing loss. Although an October 2011 VA examination report reflects hearing loss only at frequencies higher than 4000 Hertz, a July 2011 private record reflects both sensorineural hearing loss and tinnitus.
The Veteran is competent to report experiencing decreased hearing acuity and ringing in the ears. Although the October 2011 VA examiner opined that the Veteran's hearing loss is not likely related to service, the opinion is based, in part, on the absence of documented hearing loss at separation. The absence of in-service evidence of a hearing loss disability, however, is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.
A January 2015 private report of examination, which was submitted at the Board hearing, notes speech discrimination scores were 92 percent on the right and 88 percent on the left using the Maryland CNC Word List. Thus, the evidence establishes hearing impairment for VA compensation purposes. See 38 C.F.R. § 3.385. The physician determined it to be as likely as not that the Veteran's hearing loss and tinnitus are related to noise exposure during active service.
Current tinnitus and hearing loss have been established. The Veteran has provided competent and credible evidence of in-service incurrence of exposure to loud noise. Resolving reasonable doubt in the Veteran's favor, the Board finds that both hearing loss and tinnitus are related to active service. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014). Accordingly, service connection is warranted for hearing loss and tinnitus.
ORDER
Service connection for bilateral hearing loss is granted.
Service connection for tinnitus is granted.
REMAND
In March 2014, the Veteran submitted a NOD with the denial of service connection for a back disability in the March 2014 rating decision. The RO has not issued a SOC with respect to the issue. The claim must be remanded for issuance of a SOC. See Manlincon, 12 Vet. App. at 238.
Accordingly, the issue is REMANDED for the following action:
Issue a SOC regarding service connection for a back disability. The issue is to be certified to the Board only if a timely substantive appeal is received.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs